Fullerton v. Hospital Corp. of America

• Citation: 660 So.2d 389
• Decision Date: 15 September 1995
• Docket Number: No. 93-2886,93-2886
• Parties: 20 Fla. L. Weekly D2122 Peter FULLERTON, Appellant, v. HOSPITAL CORPORATION OF AMERICA, etc., et al, Appellee.
• Court: Florida District Court of Appeals

Page 389

660 So.2d 389

20 Fla. L. Weekly D2122

Peter FULLERTON, Appellant, v. HOSPITAL CORPORATION OF AMERICA, etc., et al, Appellee.

No. 93-2886.

District Court of Appeal of Florida,

Fifth District.

Sept. 15, 1995.

Douglas H. Stein of Stein & Warfman, P.A., Miami, and Harry Averell of Harry Averell, P.A., Dania, for appellant.

Walter A. Ketcham, Jr., John C. Willis, IV, and Art C. Young of Taraska, Grower, Unger & Ketcham, P.A., Orlando, for appellee Munroe Regional Medical Center.

John R. Dorough of Patillo & McKeever, P.A., Ocala, for appellee Marion County School Board.

Gary L. Miller of Behan, Freemon & Miller, Tampa, for appellee INFAB Corporation.

Francis J. Carroll, Jr., of Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Daytona Beach, for appellee Hospital Corporation of America and remaining appellees.

THOMPSON, Judge.

Peter Fullerton ("Fullerton") appeals the entry of a partial final summary judgment in favor of Hospital Corporation of America, d/b/a Marion Community Hospital ("the hospital"), and others which dismissed his derivative consortium claim. The issue on appeal is whether Florida law allows Fullerton to proceed with his derivative claim even though he was not married to his wife at the time she suffered the injury which is the basis of his claim. We affirm.

The facts of this case are not in dispute. Fullerton's cause of action arose as the result of his wife's exposure to radiation when she was a student trainee studying radiation technology at the hospital. Fullerton married his wife several years after she was exposed to radiation. They did not realize that she was injured until three years after they had married when she developed cancer of the thyroid and had to have her thyroid removed. The Fullertons filed their causes of action five years after the exposure, alleging, among other things, that her cancer was caused by improper protection equipment, improper training procedures, and defective equipment.

Relying on Tremblay v. Carter, 390 So.2d 816 (Fla. 2d DCA 1980), the hospital and others filed similar motions for summary judgment, arguing that, because the Fullertons' were married after the injury occurred, Mr. Fullerton could not maintain a consortium claim. In Tremblay, the Second District Court of Appeal held that

If an accident occurs when the relationship of husband and wife does not exist, a person does not acquire the right to claim a loss of consortium when [t]he [person] subsequently marries the injured party.

Id. at 818. In support of its holding, the court cited the common-law rule that "a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium." Id. at 817. The rationale behind this rule is that a person may not marry into a cause of action and that a line must be drawn somewhere as to liability. Id. at 817-18.

Fullerton acknowledges that his wife's injury occurred prior to the Fullertons' marriage. Citing cases from other jurisdictions, however, Fullerton contends that he should be permitted to maintain a derivative consortium claim because his wife's cause of action accrued during the marriage when the wife discovered her injury. ¹ We recognize that courts in other jurisdictions have permitted a consortium claim for an injury occurring prior to marriage where the cause of action accrues during the marriage when the parties discover the injury. See, e.g., Kociemba v. G.D. Searle & Co., 683 F.Supp. 1577, 1578 (D.Minn.1988) (holding that general rule that consortium claim may not be maintained for injuries which precede marriage is inapplicable when pre-marriage injury manifests itself during marriage); Stager v. Schneider, 494 A.2d 1307 (D.C.1985) (permitting consortium claim where failure to disclose test results occurred prior to marriage but was discovered during marriage); Furby v. Raymark Indus., 154 Mich.App. 339, 397 N.W.2d 303, 306 (1986) (permitting consortium claim where asbestos-related illness could not have been discovered in exercise of reasonable care and diligence prior to marriage). These courts conclude that permitting such claims does not thwart the policies of the consortium rule. The spouse is not marrying into a cause of action because, at the time of the marriage, neither spouse knows or could know, through the exercise of reasonable care and diligence, of the latent injury. See Furby, 397 N.W.2d at 306. Additionally, recognizing a consortium claim under these circumstances does not increase litigation because a claim for loss of consortium is derivative and does not create a new action. Id. 397 N.W.2d at 304.

Other jurisdictions, however, have continued to follow the common-law rule set forth in Tremblay that the parties must have been married at the time of the injury in order for one spouse to maintain a claim for loss of consortium, regardless of when the injury actually is discovered. See Doe v. Cherwitz, 518 N.W.2d 362, 364 (Iowa 1994); Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, 580 N.Y.S.2d 168, 170, 588 N.E.2d 66, 68 (1991). These courts conclude that, while the discovery rule extends the limitations period for the injured spouse, it does not create a loss of consortium claim for the uninjured spouse where there was none within the limitations period. See Doe, 518 N.W.2d at 365.

In the absence of any statutory law on this point, Florida courts are required to follow the common-law rule. Cate v. Oldham, 450 So.2d 224, 225 (Fla.1984); ...